Reformers Bloodied But Not Bowed

In twenty years of dealing with campaign finance reform bills, I have maintained my sanity and avoided clinical depression by consistently embracing an all-purpose axiom--never make an advance reservation for a seat at the legislation’s signing ceremony. With campaign reform, where the livelihoods of 535 decision-makers are at stake and all, by definition, are successful under the existing system, momentum is deceiving, success in one arena does not beget success in another, and defeat is regularly snatched from the jaws of victory. Undue optimism is never warranted, as last week’s farce in the House of Representatives made clear.

But the last three years of dealing with campaign finance reform have convinced me to add a corollary to the axiom above--Undue pessimism is also unwarranted. Campaign reform is like Rasputin: Foes can stab it, shoot it, poison it, imprison it, defenestrate it, and it will stagger back to its feet and keep on coming.

What happened in the House? Although reform foes have labored mightily to obfuscate and shift blame, what happened is quite clear--the GOP leaders took extreme measures to kill reform.

First, some background. In April, the Senate passed by a vote of 59 to 41 its version of campaign finance reform, known as McCain-Feingold. After several weeks of delay by Senate Republican leader Trent Lott of Mississippi, the bill went to the House. Speaker J. Dennis Hastert (R-Ill.) promised the bill’s House coauthor Rep. Christopher Shays (R-Conn.) timely action and a fair process, with a clear up-or-down vote on his proposal, known as Shays-Meehan. Although most reformers wanted the bill heard before the Memorial Day recess, Shays defended the Speaker’s decision to bring it up after the July 4 recess.

In the meantime, it became clear that many Democrats who had in the past voted repeatedly for reform--for bills nearly identical to Shays-Meehan--were wavering now that enactment was a real possibility. And it also became apparent that, while Republican opponents strongly hoped to get the votes to kill Shays-Meehan outright, they had a backup strategy as well: amend the bill enough to force a conference committee between the two houses and then get the bill killed there. Aware of the machinations, Shays and his cosponsor, Martin T. Meehan (D-Mass) worked feverishly in the days approaching the House floor debate to accomplish two goals: change their bill in small but significant ways to satisfy the legitimate objections of lawmakers uneasy about the Senate reform, and simultaneously get the concurrence of key senators to have their bill accepted by the Senate without a conference to iron out differences.

Shays and Meehan, working closely with House Democratic leader Richard A. Gephardt of Missouri, fine-tuned the bill, appropriately increasing the overall limits on hard money contributions to the parties. Reform opponents, seeing they might lose, initiated a late-night revision of the rules governing how the bill would move forward. Instead of allowing changes to be voted on as a single amendment, they insisted that each of 14 proposed changes be voted on individually, something the bill’s proponents described as setting up a “14-point obstacle course.” In the end, Shays and Meehan prevailed in blocking the rules change--but that also negated the agreement to bring the bill to the floor for debate, in effect tabling it indefinitely.

Speaker Hastert angrily chastised Shays and blamed Gephardt for the debacle. But the action was clearly the Speaker’s problem--and perhaps his undoing. If Hastert, with only a six-vote margin in the House, refuses to bring up reform again quickly, he will risk GOP unity on other issues important to the Bush agenda and tarnish his own credibility further. To be sure, the outcome remains too close to call, and reform could die yet again. But it is tangibly closer to enactment than at any other time in the past quarter century.

As someone who helped persuade McCain, Feingold, Shays and Meehan three years ago to move from a broad and comprehensive reform plan to an incremental one, and as someone who helped draft key elements of the bill that passed the Senate and the one pending in the House, I am anything but objective here. But I join with a substantial swath of the scholars who study campaigns for a living--and with every living former officer of the American Civil Liberties Union--in believing that the approach embodied by these bills is both constructive and constitutional.

Even the best legislation, however, won’t be a panacea for the problems of money and politics. Any reform measure will immediately be tested and challenged by highly motivated and resourceful party operatives, consultants, candidates, office-holders and their lawyers, probing for weak spots and loopholes. They will inevitably succeed in finding some, requiring new steps to curb the worst excesses. Moreover, no reform can anticipate the changes in campaigns that will accompany the ongoing telecommunications revolution. But if we are good and lucky, reform can work for five to ten years before rejiggering is necessary.

We need adequate resources in politics for candidates to run campaigns and communicate with voters. It’s important that people who aren’t celebrities or multimillionaires can run and win. But unlimited soft-money contributions are destructive and corrupting. We now have research showing that only 8.3% of soft money is used for the party-building activities it was created to support. The bulk of it is used for television advertising, so-called issue advocacy that is in fact candidate advertising. More than 90% of the soft-money “issue ads” run by the parties target candidates for election--less than 10% of these ads even mention a party. Is that party building?

Then there are the “issue ads” run by outside groups, which have no limits on funding. They can tap any funding source (including foreign governments) without disclosing where the money came from, so long as they avoid using words like “vote for,” “vote against,” “elect” or “defeat”--words the Supreme Court, in the 1976 Buckley vs. Valeo decision, said represent “express advocacy,” or trying to get specific candidates in office, as opposed to mere “issue advocacy.” But an examination of advertising during the past three elections reveals that the typical “issue ads” that run at election time have less issue content than any other form of political advertising. Instead, they are designed to attack a particular candidate. Moreover, only 4% of the ads run by the candidates themselves--the very definition of “express advocacy”--use words like the ones above, rendering the Supreme Court definition obsolete.

McCain-Feingold and Shays-Meehan would end federal party soft money--and increase the supply of hard money to the parties so that they can thrive by focusing on real party-building and grassroots activities. They raise the limits on what individuals can give to candidates in hard money, which have not been adjusted, even for inflation, in a quarter century. They ban federal officeholders and candidates from raising state soft money. They ban the use of union dues and corporate funds from “electioneering”--defined as running ads close to an election clearly targeting a candidate for federal office for election or defeat. Their provisions have been carefully crafted to meet the Supreme Court’s reasoning in Buckley and its longstanding positions on corporate and union involvement in campaigns. Sooner or later, they will be enacted.

But this reform is only a first step. After enactment of stage one, we need to move aggressively to stage two--encouraging more small donors to participate in the political process and freeing up additional non-corrupting resources for candidates and parties. Stage two will include a tax credit for small contributions ($100 or less) and a sensible free TV-time provision, tying a rental fee for broadcasters’ use of the digital spectrum granted them gratis by taxpayers to the provision of free minutes for parties and candidates. In turn, the granting of time to candidates will be tied to their ability to raise substantial amounts in small donations. We will begin debating these issues in earnest the day I am actually able to reserve my seat for the McCain-Feingold-Shays-Meehan signing ceremony.